Congress had established the program with the National Childhood Vaccine Injury Vaccine Act (NCVIA) of 1986 in response to a rising number of such lawsuits.

Though the program denied Cloer’s claim, and the U.S. Court of Federal Claims affirmed, Cloer found a bit of relief from the Federal Circuit.

Summarizing its August 2011 ruling nearly a year later, the en banc appeals court said that Cloer’s challenge “prompted a change of law in a limited way that potentially opens the door to certain Vaccine Act petitioners who otherwise would have been precluded from seeking redress.”

On that basis, the court said Cloer could have a case for attorneys’ fees and remanded the issue.

The U.S. Supreme Court took up the case in November 2012 and affirmed Monday.

It found that the government “lacks textual support” for its argument that “the act’s limitations provi­sion, which states that ‘no petition may be filed for compensation’ 36 months after a claimant’s initial symptoms began, §300aa-16(a)(2), constitutes ‘a statutory prerequi­site to the filing of a petition “for compensation under the program,”‘ according to the ruling.

“First, as noted, there is no cross-reference to the act’s limitations provision in its fees provision, §300aa-15(e), or the other section it references, §300aa-11(a)(1),” Justice Sonia Sotomayor wrote for the court. “When these two linked sections are read in tandem they simplyindicate that petitions filed with the clerk of the court are eligible for attorney’s fees so long as they comply with the other requirements of the act’s fees provision. By its terms, the NCVIA requires nothing more for the award of attorney’s fees. A petition filed in violation of the limita­tions period will not result in the payment of compensa­tion, of course, but it is still a petition filed under §300aa-11(a)(1).”

Sotomayor also chided the government for its “exaggerated” fear that awarding Cloer fees “will force special masters to carry out costly and wasteful ‘shadow trials,’ with no benefit to claimants, in order to determine whether these late petitions were brought in good faith and with a reasonable basis.”

“Special masters consistently make fee deter­minations on the basis of the extensive documentation required by §300aa-11(c) and included with the petition,” the ruling states. “Indeed, when adjudicating the timeliness of a petition, the special master may often have to develop a good sense of the merits of a case, and will therefore be able to deter­mine if a reasonable basis exists for the petitioner’s claim, including whether there is a good-faith reason for the untimely filing. In this case, for example, the chief spe­cial master conducted a “review of the record as a whole,” including the medical evidence that would have supported the merits of Dr. Cloer’s claim, before determining that her petition was untimely.”

The opinion was mostly unanimous but Justices Antonin Scalia and Clarence Thomas would not join in Part II-B. This section called the government’s position “inconsistent with the goals of the fees provision itself.”

EVES DRIFT is now coming online

Established 01 JAN 2015
This site is dedicated to keeping tabs on wild mutations as well as man made. I am currently pulling from the databases of my other two sites. Once properly categorized, I will start working on site cosmetics.